Immigration authorities are requesting jails keep inmates longer, but it's local authorities who can get in legal trouble for complying.

The Fairfax County Sheriff’s Office in Northern Virginia is holding people in jail past their release date at the request of Immigration and Customs Enforcement [ICE] using a technique that raises serious questions about potential constitutional rights violations. Since President Donald Trump’s election, the number of people detained using this tactic has risen sharply, and federal officials have plans to use a similar procedure to ramp up detainments in county jails nationwide as a way to funnel immigrants into the deportation pipeline.

Legal experts say sheriffs’ departments are denying immigrants their liberty without probable cause, a fundamental right enshrined in the Constitution’s Fourth Amendment for more than two centuries. According to the constitution, there’s a limit to how long authorities can keep a person in jail before they have to charge them or release them.

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In Fairfax County, this ICE tactic has overwhelmingly impacted Latino detainees, who are being held for immigration authorities and kept behind bars despite having completed their time in the local jail, had their charges lifted, or been otherwise ordered released by courts. The federal courts have recently ruled that this procedure constitutes an arrest, because the person is kept in jail beyond their release date.

Under the procedure, the Fairfax County Sheriff’s Office waits for a person’s local charge to be adjudicated — they are either charged with a crime and held or released. Then, on the date of the person’s scheduled release, the agency re-books the person for immigration authorities using an ICE civil arrest warrant. The person remains in custody under the auspices of a federal bed-for-rent detention contract that ICE has with the sheriff’s office. The Fairfax Sheriff’s Office then holds the detainees for up to 48 hours past their release date so that ICE can pick them up, according to First Lt. Jamel Perkins, a spokesperson for the Fairfax County Sheriff’s Office.

Data provided by the Fairfax County Sheriff’s Office to ThinkProgress via a public records request shows that the agency has more than doubled the number of people held in jail and turned over to ICE this year so far: 663 people in 2017 from January to October, compared to just 258 people for all of 2016.

Those numbers have generally increased month-to-month — peaking at 104 individuals for the month of September, an all-time monthly high in two years of data — and since ICE’s new detainment policy went into effect in April.

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Under the new policy, ICE told law enforcement agencies that all its detainers would be accompanied by another document: an ICE “warrant.”

However, the ICE “warrant” is just an administrative document, not a judicial warrant, which are documents issued by a judge or magistrate, who use facts to determine probable cause to arrest a person.

“An ICE warrant… is just a piece of paper that ICE writes ‘warrant’ on,” said Lena Graber, a staff attorney with the Immigrant Legal Resource Center (ILRC) in San Francisco. “It contravenes the very idea of a warrant because a warrant is a statement from an outside neutral magistrate or judge that there is probable cause that someone either committed an offense or, in the immigration case, is subject to deportation. And that’s not what it is.”

“An ICE warrant… is just a piece of paper that ICE writes ‘warrant’ on. It contravenes the very idea of a warrant.”

Previously, ICE used a “detainer” (an official request from their agency to another) to ask law enforcement agencies to keep a person in jail for up to 48 hours (excluding holidays and weekends) after a court ordered their release. But over the past several years, federal court rulings on these ICE detainers found that the practice violates Fourth Amendment protections against unreasonable search and seizure, resulting in the new ICE “warrant” policy.

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But that “warrant” is still insufficient to put a person in jail, said Cody Wofsy, a staff attorney with the ACLU Immigrants’ Rights Project. A local law enforcement agency must have a judicial warrant with probable cause to keep a person in custody.

“The bottom line is what’s being described here is still an arrest by a local official for an immigration violation. They are continuing to hold the person who is in their custody after they should be released based on the state law charges,” said Wofsy.

Using an ICE “warrant” to re-arrest a person who legally should walk free is unlawful, and doing so under a contract with ICE doesn’t make it right: it just provides a “veneer of lawfulness,” said attorney Simon Sandoval-Moshenberg, who is the legal director of the Immigrant Advocacy Program at the Legal Aid Justice Center in Virginia. Federal authorities, such as the U.S. Marshals, typically use these contracts (known as an Intergovernmental Service Agreement, or IGSA) to house people they already have in federal custody in local jails.

“I see ICE doing what I now understand is a nationwide practice of handing over an [ICE “warrant”] as well as a detainer, as basically ICE’s attempt to trick local law enforcement agencies into thinking that they’ve somehow solved the legal problem,” said Sandoval-Moshenberg. “At that 10,000 foot level, is that legal or not? It is very unclear, and I think there are strong arguments against it, but there’s been no clear ruling on it because this is such a new process.”

But under the Trump administration, ICE’s use of detainers — with an ICE “warrant” or alone — to prolong jail time for suspected undocumented immigrants has jumped significantly, according to the most recent national statistics. The number of detainers issued by ICE officers increased by 81 percent this year. ICE issued 112,493 detainers from January 20 to Sept. 30, 2017, compared to 62,192 during the same period last year.

“[Jails] are continuing to hold the person who is in their custody after they should be released.”

Half a dozen legal experts told ThinkProgress that the Fairfax County Sheriff’s Office is taking a legal gamble by keeping people in jail using just the ICE warrant and detention contract.

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“I think that they are walking on very thin constitutional ice and are willingly exposing themselves to a lawsuit for violating the Fourth Amendment rights of migrants who are in their custody,” said César Cuauhtémoc García Hernández, a professor at the University of Denver Sturm College of Law.

Legal advocates are particularly alarmed at these tactics — detainers, contracts, and non-judicial “warrants” — because the Trump administration has cast a wide net targeting all undocumented immigrants, regardless of whether they’ve committed a crime. And ICE has made the local detainment strategy the linchpin of its immigration enforcement plan, which means local law enforcement agencies nationwide face a similar legal dilemma.

The administration’s aggressive stance against sanctuary cities is based in large part on cracking down on local jurisdictions who refuse to respond to ICE’s requests to keep immigrants in jail. Trump administration officials, including Attorney General Jeff Sessions are criticizing, pressuring, and threatening to pull federal grants from jurisdictions who refuse to comply.

“This attempt to contract their way out of the requirements of the Fourth Amendment only underscores how deeply these sheriffs have bought into the Trump administration’s nativist agenda and its endeavors to tear apart as many families as possible,” Graber, wrote in an email to ThinkProgress. “This kind of wand-waving to arrest people doesn’t pass legal muster, and arresting immigrants for civil immigration violations shouldn’t be the goal of local law enforcement in the first place.”

A legal grey area

By keeping people jailed past their release date — even if it’s done at the request of another agency, like ICE — these law enforcement agencies risk lawsuits, such as the one settled in Virginia earlier this year by Henrico County Sheriff Michael Wade (R). There, a Salvadoran immigrant sued after the Henrico Jail held him past his release date at ICE’s request.

The case was closely watched by Virginia sheriffs, the Virginia Sheriffs’ Association’s executive director told the Richmond Times-Dispatch. As a result of that case many Virginia sheriffs have stopped holding people in jail for ICE unless they get a warrant or order of detention signed by a federal judge or magistrate, according to the paper.

García Hernández of the University of Denver said ICE’s tactic ignores the warrant process: gathering evidence, preparing a warrant application, submitting that to a judge, and then receiving an arrest warrant or search warrant.

“ICE for some reason or other doesn’t do that. And in that way ICE is acting as if it is in a unique position; that it somehow has a right not to comply with the constitutional process that every single police department and sheriff’s department in the United States has been complying with since the day that the Fourth Amendment was added to the United States Constitution,” said García Hernández.

“They are walking on very thin constitutional ice.”

There are other problems with the way Fairfax keeps people in its jail: ICE itself requires its officers serve the ICE “warrant” in person, and inform the jailed person that they are under arrest for a civil violation, said legal experts. Fairfax doesn’t follow those guidelines. ICE submits these documents via fax or email, according to Perkins.

Whether responding to ICE detainers or ICE “warrants,” local law enforcement agencies place themselves at risk of violating the constitution if they lack probable cause and legal authority to make the arrest, said Wofsy of the ACLU.

That’s particularly risky when ICE makes errors.

“ICE is acting as if … it somehow has a right not to comply with the constitutional process.”

Wofsy was part of the legal team that represented Ada Morales in a federal case in Rhode Island. The state jailed her past her release date without probable cause after ICE requested they do so. As it turned out, Morales is a U.S. citizen.

In his opinion issued last January, U.S. District Judge John J. McConnell Jr. noted that, although ICE was in sole charge of investigating cases, the agency “expected state and local law enforcement to perform the ‘dirty work’ of holding the individuals” in their custody until ICE can retrieve them.” Morales’ illegal detention at the request of ICE but in Rhode Island’s jail cell, wrote McConnell, revealed a “dysfunction of constitutional proportion at both the state and federal levels.”

Cases like this, along with ICE detainer data, have shown that ICE fails to adequately investigate before asking local agencies to keep people jailed, said Wofsy. Even under the Obama administration, which prioritized jailing and deporting serious and violent offenders who were immigrants, these systematic problems resulted in U.S. citizens who were kept in jail at ICE’s request.

Wofsy’s concern is that under the Trump administration, which isn’t prioritizing serious offenders, but has instead signaled it intends to massively increase the number of people it deports, tactics such as jailing people past their release dates for ICE will only put more people at risk.

“These problems are only going to get worse and more exacerbated as enforcement is being ramped up and becoming more and more aggressive under this administration,” said Wofsy. “This kind of dragnet approach to immigration enforcement is just going to lead to more and more mistakes, and more egregious situations.”

“This kind of dragnet approach to immigration enforcement is just going to lead to more and more mistakes.”

Nonetheless, the majority of sheriffs in Florida as well as other sheriffs around the country have signaled they are eager to cooperate with ICE, according to Sheriff Bob Gualtieri (R) of Pinellas County, Fla.

“We’re fully supportive of the effort and that’s what this goal has been — is to do it so that it can be done lawfully, effectively and doesn’t put us at risk of being sued and facing legal consequences for doing something the courts have said we can’t do,” said Gualtieri. “So the absolute sum of it among the majority of sheriffs is that they want to be able to do it, they’re just looking for a lawful way to get it done.”

And Gualtieri would know: he’s been pitching federal officials on ways local sheriffs can ramp up their cooperation with ICE while staying out of legal trouble.

Earlier this year, Sheriff Gualtieri began meeting with officials from ICE, the Department of Homeland Security, and the Department of Justice to devise a strategy to work around the legal problems sheriff departments face when they keep people in jail for ICE.

Gualtieri suggested a national model based on what the Pinellas County Sheriff’s Office has done for about two years now under their ICE detention contract, which pays his jail to keep people for ICE. The Sheriff’s Office holds a person in jail past their release date once ICE sends three forms: a detainer request, an ICE “warrant,” and an ICE “order to detain.” Using these forms, Pinellas County bureaucratically releases the jailed person under their local or state charges, then re-books them into ICE custody in the same jail.

“So we’re not effecting the arrest, we’re not taking the person into custody, we are merely housing them for ICE because the person is in ICE custody,” said Gualtieri, who is also an attorney who specialized in civil litigation.

From the perspective of the person in Gualtieri’s jail, however, there is little difference between being “housed” for ICE and stuck in jail past his or her release date. Gualtieri cites the three pieces of paperwork ICE provides his jail as the legal authority.

“That makes it lawful and it is a solution to the Fourth Amendment issue that the courts have said was the problem,” says Gualtieri, who wrote a memo detailing this tactic and sent it to two national sheriffs associations in June.

“They want to be able to do it, they’re just looking for a lawful way to get it done.”

Legal experts told ThinkProgress this novel approach has many of the same problems as Fairfax’s approach. “What’s really happening constitutionally and legally speaking is that this is a new arrest, and the arrest is made by non-federal officials,” said Christopher Lasch, another professor at the University of Denver Sturm College of Law.

In April, the Fairfax County Sheriff’s Office renewed its detention contract with ICE, but changed the length of time it holds people for ICE from 72 hours to 48 hours (excluding weekends and holidays). The contract renewal also allows Fairfax, like Pinellas County, to use the ICE detainer, ICE “warrant,” and detention contract to keep people in jail past their release dates.

As the federal courts continue to scrutinize ICE “warrants” — and so far the courts have ruled against the practice on Fourth Amendment grounds — legal experts told ThinkProgress that they see the next legal battle crystallizing around this use of the detention contract.

“It’s been a cat-and-mouse game. As soon as we whack them down with one thing, they move to another tactic,” said Mark Fleming, the associate director of litigation at the National Immigrant Justice Center (NIJC) in Chicago.

Aside from the detention contract, there are other problems that arise, he said.

Immigration enforcement is a federal responsibility, so in most cases only federal agents, like ICE, can make an immigration arrest. Local police can be deputized to make immigration arrests, under a different contract with ICE: a 287(g) agreement. The Fairfax County Sheriff’s Office has a detention contract, allowing it to hold onto a federal agent’s prisoner, but it doesn’t have a 287(g) agreement. Fairfax police, in other words, aren’t deputized to make federal arrests, such as civil immigration violations. Those warrants would have to be served in person, or by a deputized agent.

But Sheriff Gualtieri said that he sees no requirement for the ICE “warrant” to be served in person. He told ThinkProgress that his agency receives the forms via fax or email from ICE.

Ultimately the courts will decide if the procedure is constitutional and protects individuals against unreasonable search and seizure, said Gualtieri. But he said he is 100 percent confident it will, as long as the jail has an ICE detention contract, an ICE “warrant,” and an “order to detain.”

“What we also know is that ICE clearly has the authority unquestionably, unequivocally, undeniably by anybody… to hold people for whom they have probable cause and especially when there’s been a warrant issued for that person’s arrest,” said Gualtieri. “And when they give us a copy of the warrant along with the I-203, which is the order to detain, they are in ICE custody. Their detention has been effected by ICE, and we’re merely the entity that’s holding them.”

Diminishing sanctuary cities with anti-immigrant county policies

Whether it’s through new legal maneuvers or the public shaming of agencies that don’t cooperate, one thing is increasingly clear about the Trump administration’s approach to immigration: a new sheriff is in town, one that legal experts say is willing to push the legal limits to deport more and more people from the U.S.

“The rule of law as it’s touted by this administration is: we want to deport as many people as possible without any legal interference,” said Lasch of the University of Denver.

Last year, the Immigrant Legal Resource Center analyzed which U.S. counties cooperated to what degree with ICE under the Obama administration. The results, based on nationwide detainer data the organization received through a Freedom of Information Act request from the federal government, show that counties, not cities, are most actively cooperating with federal efforts to deport. Sanctuary cities may be pushing back, but sanctuary counties are exceedingly rare.

“The vast majority of counties provide ICE with all of the information and resources they ask for. Generally, city ordinances do not govern county level agencies or officials, and sanctuary city laws can be undermined by county policy and practice,” the ILRC found.

Graber, who co-authored the report, said that the data showed that most counties do whatever ICE asks of them “without thinking very much.”

“The rule of law as it’s touted by this administration is: we want to deport as many people as possible without any legal interference.”

“There is a whole range and all kinds of places have different kinds of policies,” said Graber. “But the default nationally is to have not really thought about it. And when ICE asks you to do something you just do it without ever evaluating whether it’s legal or constitutional or within your authority as law enforcement or anything else.”

Despite the legal risk of partnering with ICE, with Trump calling for a crackdown on immigration, legal experts have seen a shift in the level and tenor of cooperation as well. For example, law enforcement agencies are increasingly signing or renewing their detention contracts with ICE, as the Fairfax County Sheriff’s Office did this year.

ICE data shows that at least 54 ICE detention contracts were created or reactivated this year. There has also been a significant increase in the number of law enforcement agencies that are both deputized to make federal immigration arrests and who have ICE detention contracts, according to the Detention Watch Network and the Center for Constitutional Rights.

Fleming described this combination as a new template that’s emerged under the Trump administration, and it’s problematic because it financially rewards jurisdictions to jail more and more immigrants for ICE.

“The combination of these two programs essentially incentivizes large scale racial profiling, in order to make the detention contract as profitable as possible,” according to the Detention Watch Network and CCR in a memo analyzing the data.

Fairfax County in particular has a long track record of cooperating with ICE. In 2009, the sheriff’s office was the first law enforcement agency in the region to get access to ICE’s Secure Communities program, a database fingerprint-sharing program. That program launched in 2008, ended in 2014, and was reestablished days after Trump took office.

“Anti-immigrant sentiment, anti-immigrant legislation, anti-immigrant law enforcement issues — these are not new to Virginia,” said Claire Guthrie Gastañaga, executive director of the ACLU of Virginia. “[But] they have re-escalated since the Trump administration because the Trump administration has a different policy objective than the Obama administration.”

Indeed, data for Fairfax County and the state of Virginia mirror national trends showing that ICE detainment requests have spiked since Trump was elected.

“The combination of these two programs essentially incentivizes large scale racial profiling, in order to make the detention contract as profitable as possible.”

But not all jurisdictions are stepping forward to cooperate with ICE. At least four state legislatures as well as cities and counties across the country have considered legislation to restrict extended jail holds or ban them altogether, according to the New York Times.

And for agencies that do want their agents deputized to make immigration arrests, taking on the role of immigration enforcement officers will come with a hefty price, says Lasch. Officers who are deputized as ICE agents must be trained at the expense of their agency, must learn a new area of law and practice, and the agency receives no compensation for doing this federal work, he said.

Prince William County in Virginia discovered just how costly this is when the sheriff’s department launched its deputizing program in 2008. County supervisors had to borrow from the county’s rainy day fund to cover the start-up costs, according to a Brookings Institution study.

“Most sheriffs and law enforcement agencies around the country are saying: we’re stretched completely thin and we don’t have the resources to do the job that we’re supposed to do,” said Lasch. “And then you’re going to have them take on an entirely new set of duties… and not get compensated for any immigration enforcement that they engage in. It’s a completely different animal.”

While some law enforcement agencies avoid becoming entangled with ICE because of legal risks and financial burden, others are concerned about undermining community trust, said Wofsy from the ACLU.

Sheriff Gualtieri in Florida says he is keenly aware of the community trust issue as he moves forward with his plans to expand his strategy nationwide.

“I have no intention and no desire to engage in immigration enforcement on the street,” said Gualtieri. “The detainer issue is a totally separate issue than immigration enforcement on the street.”

Gualtieri said it’s important that his officers maintain the trust of the immigrant community.

“If they [immigrants] think that local law enforcement is going to arrest them and put them in jail every time we have contact with them, it’s about impossible for us to effectively do our job,” said Gualtieri.

A way forward: The California model

States with large immigrant populations, such as California, have found one way to limit ICE cooperation while ensuring that undocumented immigrants who commit serious and violent crimes are deported. The state’s TRUST Act, passed in 2013, bans jails from holding people past their release dates for ICE, except in limited circumstances.

And last year, California Gov. Jerry Brown (D) signed the state’s TRUTH Act, which requires jails to give people copies of ICE detainers, to tell them they plan to comply with it, and a form telling the jailed person that any ICE interviews are voluntary.

“I think you’re going to see more efforts to convince state and city officials to follow California’s lead,” said García Hernández of the University of Denver. “Right now California is at the forefront of the movement to disentangle ICE from state and local government operations.”

Lasch too has tracked the range of reactions from local and state jurisdictions. Some states such as Oregon and Colorado responded quickly when the courts rejected detainers. In some cases, almost all the counties in these states decided not to respond to ICE detainers, he said.

Legal liabilities weren’t the only motivating factor, however. Lasch said that the states where communities have mobilized politically and made their voices heard are more likely to decide against cooperating with ICE.

“If nobody is questioning the sheriff, then the sheriff can do whatever the sheriff personally or politically wants to do. If the community mobilizes, then you start having a real political discussion about what’s best for the community,” said Lasch.

“If nobody is questioning the sheriff, then the sheriff can do whatever the sheriff personally or politically wants to do.”

Graber also pointed to California as an example of how evolving public opinion can transform a state politically. Today, California is one of the leading states in the country when it comes to protecting the due process rights of jailed immigrants, she said. But in the 1990s, voters there passed a notoriously anti-immigrant proposition.

“The immigrant community has grown and become so much more a part of the state that no one could think about that now in California,” said Graber. “And as an immigrant rights lawyer from California, I sometimes look at other states and I’m like: this is your future and it’s good. But it’s a long slow road.”

UPDATE 1/24/18: The Fairfax County Sheriff’s Office announced Tuesday that it will cancel its detention contract with federal immigration authorities and will no longer hold people in jail past their release date for Immigration and Customs Enforcement (ICE) unless the request is accompanied by a court order. Read more here.